92 Decision Citation: BVA 92-25462
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-53 661 ) DATE
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THE ISSUE
1. Entitlement to service connection for alcohol abuse as
secondary to the service-connected anxiety disorder.
2. Entitlement to an increased evaluation for anxiety
reaction, rated as 30 percent disabling.
3. Entitlement to a total evaluation based on individual
unemployability due to service-connected disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
Ronald R. Bosch, Counsel
INTRODUCTION
This matter came before the Board of Veterans Appeals
(Board) on appeal from a rating decision of the Department
of Veterans Affairs (VA), Regional Office (RO) in Jackson,
Mississippi. The veteran had active service from December
1941 to January 1945. An October 1991 rating decision
denied his claim of entitlement to an increased evaluation
for his anxiety reaction. The notice of disagreement with
the above determination was received in November 1991. The
statement of the case was issued in November 1991. The
substantive appeal was received in December 1991. The
representative, Veterans of Foreign Wars of the United
States, submitted a written argument in January 1992. The
case was received and docketed at the Board in January
1992. The representative submitted an additional written
argument in May 1992.
The issues for appellate consideration have been expanded to
include entitlement to service connection for abuse of
alcohol and depression as secondary to the service-connected
anxiety reaction in view of Akles v. Derwinski,
1 Vet.App. 118 (1991); Myers v. Derwinski, 1 Vet.App. 127
(1991); Karnas v. Derwinski, 1 Vet.App. 308 (1991); EF v.
Derwinski, 1 Vet.App. 324 (1991); and Douglas v. Derwinski,
2 Vet.App. 103 (1992).
REMAND
The substantive appeal from the veteran received in December
1991 and the statements of his representatives at the RO and
at the Board dated in early 1992 have essentially raised the
issues of entitlement to service connection for abuse of
alcohol and depression as secondary to the service-connected
anxiety reaction, and a total compensation evaluation based
on individual unemployability. In a recent case, Harris v.
Derwinski, 1 Vet.App. 180 (1991), the United States Court of
Veterans Appeals stated that, when two issues are
"inextricably intertwined," a decision on one issue would
have a significant impact on the veteran's claim for the
second issue, thereby reopening the first issue. In order
for the Board to reach a final decision, both issues, when
inextricably linked together, must be considered.
Therefore, the Board believes that, in light of the Harris
decision, the issue of the veteran's entitlement to service
connection for abuse of alcohol as secondary to his
service-connected anxiety reaction should be resolved prior
to final appellate consideration of the issues of
entitlement to an increased evaluation for his anxiety
reaction and a total compensation evaluation based on
individual unemployability.
An up-to-date employment information statement (VA
Form 21-8940) from the veteran is not on file. A VA
psychiatrist has not had the opportunity to determine
whether the veteran's abuse of alcohol is etiologically
related to his service-connected anxiety reaction. The June
1991 VA special psychiatric examination report shows that
the veteran had been receiving psychotherapy at the local VA
medical center since the 1940's. The records pertaining to
such recent mental health treatment are not on file.
VA has a duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103(a) (1991). The United States Court
of Veterans Appeals has held that the duty to assist the
veteran in obtaining available facts and evidence to support
his claim includes obtaining medical records to which the
veteran has referred, adequate VA examinations, records in
the possession of VA, and pertinent evidence that applies to
all relevant facts. Sanders v. Derwinski, 1 Vet.App. 88
(1990); Murphy v. Derwinski, 1. Vet.App. 78 (1990);
Littke v. Derwinski, 1 Vet.App. 90 (1990); and Seavey v.
Derwinski, U.S. Vet. App. No. 90-1484 (Feb. 6, 1992). This
duty includes additional VA examination by a specialist,
when recommended or indicated. Hyder v. Derwinski 1
Vet.App. 221 (1991).
Under the circumstances of this case, we are of the opinion
that additional assistance is required. The case is
REMANDED to the RO for the following:
1. Copies of the complete records
pertaining to inpatient and outpatient
treatment of the veteran at the VA
Medical Center in Jackson, Mississippi,
from March 1987 to date should be
obtained and associated with the claims
file.
2. The veteran's VA Vocational and
Rehabilitation folder should be obtained
and associated with the claims file.
3. The veteran should complete and
return an up-to-date employment
information statement (VA Form 21-8940)
which should be associated with his
claims file.
4. A VA social and industrial survey
should be conducted. Neighbors and
family members should be interviewed for
the purpose of ascertaining the veteran's
social and industrial impairment.
5. Subsequent to the above actions, the
veteran should be scheduled for a VA
psychiatric examination to determine the
current manifestations and severity of
his anxiety disorder, and whether his
abuse of alcohol is a part of and
etiologically related thereto. Any
indicated special studies should be
conducted. The claims file, to include
the evidence obtained pertaining to the
foregoing requests, should be made
available to the examiner prior to the
examination. The examiner should comment
on the veteran's social and industrial
incapacity in light of his psychiatric
disorder and should provide the
rationale.
Following completion of these actions, the RO should review
the evidence and determine whether the veteran's claim may
now be granted. If not, he and his representative should be
provided with an appropriate supplemental statement of the
case which includes application of 38 C.F.R. §§ 3.310(a) and
4.16(a)(c) (1991); and, in view of Schafrath v. Derwinski,
1 Vet.App. 589 (1991), should include application of
38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42, 4.125, 4.129, 4.130
(1991) and any other relevant provisions of the VA Schedule
for Rating Disabilities with a discussion of the history of
the veteran's anxiety reaction. A reasonable period of time
for a response should be afforded. The case should then be
returned to the Board for further appellate consideration.
The purpose of this REMAND is to obtain clarifying evidence
and to accord due process of law. No action is required of
the veteran until he is notified.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
DOMENIC E. SABATINI, M.D. (MEMBER TEMPORAILY ABSENT)
SAMUEL W. WARNER
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
(CONTINUED ON NEXT PAGE)
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).